Back to the Future - Reconciliation and Indigenous Sovereignty after Tsilhqot'in

Hoehn, Felix, University of New Brunswick Law Journal

The Final Report of the Truth and Reconciliation Commission of Canada (TRC) and its 94 calls to action are an ambitious blueprint for reconciliation between Aboriginal and non-Aboriginal Canadians. (1) The overwhelmingly positive political reception the Report received gives grounds for optimism that these recommendations can be a vehicle for reconciliation. Prime Minister Justin Trudeau issued a statement promising, among other things, a "total renewal of the relationship between Canada and Indigenous peoples. We have a plan to move toward a nation-to-nation relationship based on recognition, rights, respect, cooperation and partnership ..." (2) He promised to "fully implement the Calls to Action of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples." (3)

This paper will focus on the TRC's calls to remove the doctrine of discovery from Canadian law. These calls conflict with the doctrine of Aboriginal title, including the Supreme Court of Canada's recent decision of Tsilhqot'in Nation v British Columbia. (4) This decision has justifiably been hailed as an important step toward repairing relationships with Indigenous peoples,5 * even though its potential for furthering reconciliation is compromised by its reliance on the doctrine of discovery, which should long ago have been discarded as a disgraced part of Canada's colonial past. Therefore, Tsilhqot'in represents both the past and the future. It is a manifestation of the past because it applies the immoral and discriminatory doctrine of discovery to the prejudice of Indigenous peoples. At the same time, it points the way to the future, because it implicitly recognizes the sovereignty and territories of Indigenous nations. This holds the potential of leading toward the nation-to-nation relationship and partnership envisaged by the Prime Minister and the Truth and Reconciliation Commission.

Canadian Aboriginal law in general and the doctrine of Aboriginal title in particular, rely on the doctrine of discovery to explain how the Crown gained sovereignty without the consent of Indigenous nations. It does so by denying the sovereignty of Indigenous nations. (6) Having thus supposedly rendered the land free of sovereign powers, the Crown's sovereignty could fill this vacuum and be effective just by being asserted. The results of this racist and ethnocentric legal fiction are not just of academic interest--they have real and detrimental practical and legal implications. (7)

In spite of the entrenched position of the doctrine of discovery in Canadian Aboriginal law, the Supreme Court of Canada has recognized Indigenous sovereignty both explicitly and implicitly in a number of contexts. In Tsilhqot'in, Indigenous sovereignty could not be directly in issue because a claim for Aboriginal title as presently understood necessarily concedes an underlying Crown title. In spite of this, the Supreme Court's formulation of Aboriginal title implicitly acknowledges the need to reconcile Aboriginal title and Aboriginal sovereignty with the Crown's title and Crown sovereignty.

The purpose of this paper is to suggest that the time has come for the Supreme Court of Canada to cure Canadian law from its dependence on the doctrine of discovery. Maybe it was once considered necessary to cling to this disparaging fiction, but its time has passed. The Truth and Reconciliation Commission got it right when it said that we no longer need the doctrine of discovery because we have other means of supporting Crown sovereignty. (8)

Since the doctrine of discovery denied Indigenous sovereignty, abolishing this doctrine will allow Indigenous sovereignty to be recognized. The Supreme Court has already taken us to the threshold of a new paradigm of Aboriginal law with decisions that recognized the sovereignty of Indigenous nations and the need for treaties to reconcile sovereignties. …

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